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Constitutional Law

The Union and Its Territory

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 14-Dec-2023

Introduction

Articles 1 to 4 contained in Part I of the Constitution of India, 1950 (COI) deals with the Union and its territory and provides a mechanism for making changes in the constitution of states or union territories of the Union of India.

Territory of India

  • Article 1 of the COI defines India, that is, Bharat as a ‘Union of States’.
  • The country is described as the Union although the Constitution is federal in structure.
  • The phrase Union of States has been preferred to Federation of States because the Indian Federation is not the result of an agreement among the States like the American Federation and the States have no right to secede from the federation.
    • The federation is a Union because it is indestructible.
  • Although for the convenience of administration, the country and people can be divided into different States, the country is an integral whole.
  • As per Article 1, the territory of India can be classified into the following three categories:
    • Territories of the States
    • Union territories
    • Territories that may be acquired by the government of India at any time
  • The Territory of India is a wider expression than the Union of India because the Union of India includes only States which enjoy the status of being members of the federal system and share the distribution of powers with the Union.
  • Whereas the Territory of India includes not only the States but also the Union Territories and other territories that may be acquired by India.

Evolution of States and Union Territories

  • At the time of the commencement of the constitution, the Union of India consisted of States which were categorized into four main categories namely Part A, B, C and D.
  • By the States Reorganization Act, 1956 and the 7th Constitutional Amendment Act, 1956, the distinction between Part A and Part B states was put to an end and Part C states were abolished.
    • And thus, all the categories were reduced into two only by creating 14 states and 6 union territories on November 1, 1956.
  • Even after 1956, the political map of India had gone through continuous changes because of pressure of popular agitations and political conditions.
  • At present, there are 28 states and 8 union territories.
  • The first schedule of the COI contains the names of States and Union territories and their territorial extent.

Basis of Division of Four Main Categories of States 7th Constitutional Amendment

    • Part A: It contained states who ever ruled by governors during British India or were known as governor’s provinces.
    • Part B: It contained states who were princely states and groups of princely states.
    • Part C: It contained states who were former chief commissioners’ provinces and some princely state during British India.
    • Part D: It contained the state led by lieutenant governor.

Status of Jammu and Kashmir

  • On 5th of August 2019, the President of India promulgated the Constitution (Application to Jammu and Kashmir) Order, 2019.
  • The order effectively revoked the special status accorded to Jammu and Kashmir under the provision of Article 370.
  • It superseded the Constitution (Application to Jammu and Kashmir) Order, 1954 under which Article 35A was added to the COI.
    • Article 35A stems from Article 370 and empowers the Jammu & Kashmir legislature to define the permanent residents of the state, and their special rights and privileges.
  • The Jammu and Kashmir Reorganization Act 2019 which became effective on 31st October 2019 provided for the bifurcation of the State into two separate union territories of Jammu and Kashmir (with legislature), and Ladakh (without legislature).

Admission or Establishment of New States

  • Article 2 provides that the Parliament may, by law, admit into the Union or establish new states on such terms and conditions as it thinks fit.
    • Thus, it gives complete discretion to Parliament.
  • Article 2 grants two powers to the Parliament which are:
    • The power to admit into the Union of India new States – the states which are duly established and are already in existence.
    • The power to establish new States – formation of a state which was not in existence.
  • Article 2 deals with the admission or establishment of new states that are not part of the Union of India.

Formation of New States and Alteration of Area, Boundaries or Names of Existing States

  • As per Article 3, a new state may be formed or established by the Parliament in the following ways:
    • By separation of territory from any state or by uniting two or more parts or parts of states or by uniting any territory to a part of any State.
    • By increasing the area of any State.
    • By diminishing the area of any State.
    • By altering the boundaries of any State
    • By altering the name of any State.

Here the word State includes a Union Territory also.

  • For the formation of a new state or alteration of the boundaries or names of the existing states, under this article, the following two conditions have been laid down:
  1. No bill contemplating the above changes shall be introduced in either House of the Parliament except on the recommendation of the President.
  2. If the bill affects the area, boundaries or names of the states, the President is required to refer the bill to the concerned State Legislature for expressing its view within a specified period.

In the aforesaid conditions, the word State does not include Union Territory.

  • The President may extend the period so specified. It the State Legislature does not express its views within the period specified or extended, the bill may be introduced in the Parliament.
  • If the State Legislature expresses its views within the period specified or extended, the Parliament is not bound by the views and may either accept or reject them.
  • Further it is not mandatory to make fresh reference to the State Legislature every time an amendment to the bill is proposed or accepted.
  • In the case of Union Territories, the Parliament can itself take any action as it deems fit.
  • Thus, it is clearly evident that the COI authorizes the parliament to form new states or alter the areas, boundaries or names of existing states without their consent.

Amendment of The First and The Fourth Schedule

  • Article 4 declares that the laws made for admission or establishment of new states (under Article 2) and formation of new states and alteration of areas, boundaries or names of existing states (under Article 3) are not to be considered as amendments of the Constitution under Article 368.
  • Such laws can be passed by a simple majority and by the ordinary legislative process.
  • Article 4 also allows for consequential changes to the First Schedule and the Fourth Schedule (number of seats allocated by each State to the Rajya Sabha).

Case Laws:

  • In Berubari Union Case (1960), the Supreme Court held that the power of Parliament to diminish the area of a State under Article 3 does not provide for the cession of Indian territory to a foreign country. Indian territory can be ceded to a foreign state only by amending the Constitution under Article 368.
  • In the case of In Re: Article 370 of the Constitution (2023), the Supreme Court upheld the abrogation of Article 370 and Article 35A and held that the Parliament has the power to carve out a Union Territory from a State.